To amend the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to permit States to determine State residency for higher education purposes and to authorize the cancellation of removal and adjustment of status of certain alien college-bound students who are long-term United States residents.

IN THE SENATE OF THE UNITED STATES

August 1, 2001

Mr. HATCH introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To amend the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to permit States to determine State residency for higher education purposes and to authorize the cancellation of removal and adjustment of status of certain alien college-bound students who are long-term United States residents.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Development, Relief, and Education for Alien Minors Act’ or ‘DREAM Act’.

SEC. 2. RESTORATION OF STATE OPTION TO DETERMINE RESIDENCY FOR PURPOSES OF HIGHER EDUCATION BENEFITS.

(a) SPECIAL RULE FOR CHILDREN IN QUALIFIED INSTITUTIONS OF HIGHER EDUCATION-

(1) IN GENERAL- Notwithstanding any other provision of law and subject to paragraph (2), the Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, subject to the conditional basis described in section 4, an alien who is inadmissible or deportable from the United States, if the alien demonstrates that--

(A) the alien has applied for relief under this subsection not later than two years after the date of enactment of this Act;

(B) the alien has not, at the time of application, attained the age of 21;

(C) the alien, at the time of application, is attending an institution of higher education in the United States (as defined in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001));

(D) the alien was physically present in the United States on the date of the enactment of this Act and has been physically present in the United States for a continuous period of not less than five years immediately preceding the date of enactment of this Act;

(E) the alien has been a person of good moral character during such period; and

(F) the alien is not inadmissible under section 212(a)(2) or 212(a)(3) or deportable under section 237(a)(2) or 237(a)(4).

(2) PROCEDURES- The Attorney General shall provide a procedure by regulation allowing eligible individuals to apply affirmatively for the relief available under this paragraph without being placed in removal proceedings.

(b) TERMINATION OF CONTINUOUS PERIOD- For purposes of this section, any period of continuous residence or continuous physical presence in the United States of an alien who applies for cancellation of removal under this section shall not terminate when the alien is served a notice to appear under section 239(a) of the Immigration and Nationality Act.

(c) TREATMENT OF CERTAIN BREAKS IN PRESENCE- An alien shall be considered to have failed to maintain continuous physical presence in the United States under subsection (a) if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.

(d) STATUTORY CONSTRUCTION- Nothing in this section may be construed to apply a numerical limitation on the number of aliens who may be eligible for cancellation of removal or adjustment of status under this section.

(e) REGULATIONS-

(1) PROPOSED REGULATIONS- Not later than 90 days after the date of the enactment of this Act, the Attorney General shall publish proposed regulations implementing this section.

(2) INTERIM, FINAL REGULATIONS- Not later than 180 days after the date of the enactment of this Act, the Attorney General shall publish final regulations implementing this section. Such regulations shall be effective immediately on an interim basis, but are subject to change and revision after

(1) CONDITIONAL BASIS FOR STATUS- Notwithstanding any other provision of this Act, an alien whose status has been adjusted under section 3 to that of an alien lawfully admitted for permanent residence shall be considered, at the time of obtaining the adjustment of status, to have obtained such status on a conditional basis subject to the provisions of this section.

(2) NOTICE OF REQUIREMENTS-

(A) AT TIME OF OBTAINING PERMANENT RESIDENCE- At the time an alien obtains permanent resident status on a conditional basis under paragraph (1), the Attorney General shall provide for notice to such alien respecting the provisions of this section and the requirements of subsection (c)(1) to have the conditional basis of such status removed.

(B) AT TIME OF REQUIRED PETITION- In addition, the Attorney General shall attempt to provide notice to such an alien, at or about the date of the alien’s graduation from an institution of higher education of the requirements of subsection (c)(1).

(C) EFFECT OF FAILURE TO PROVIDE NOTICE- The failure of the Attorney General to provide a notice under this paragraph shall not affect the enforcement of the provisions of this section with respect to such an alien.

(b) TERMINATION OF STATUS IF FINDING THAT QUALIFYING EDUCATION IMPROPER-

(1) IN GENERAL- In the case of an alien with permanent resident status on a conditional basis under subsection (a), if the Attorney General determines that the alien is no longer a student in good standing at an accredited institution of higher education, the Attorney General shall so notify the alien and, subject to paragraph (2), shall terminate the permanent resident status of the alien as of the date of the determination.

(2) HEARING IN REMOVAL PROCEEDING- Any alien whose permanent resident status is terminated under paragraph (1) may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the alien to establish, by a preponderance of the evidence, that the condition described in paragraph (1) is not met.

(c) REQUIREMENTS OF TIMELY PETITION FOR REMOVAL OF CONDITION-

(1) IN GENERAL- In order for the conditional basis established under subsection (a) for an alien to be removed the alien must submit to the Attorney General, during the period described in subsection (d)(2), a petition which requests the removal of such conditional basis and which states, under penalty of perjury, the facts and information described in subsection (d)(1).

(A) IN GENERAL- In the case of an alien with permanent resident status on a conditional basis under subsection (a), if no petition is filed with respect to the alien in accordance with the provisions of paragraph (1), the Attorney General shall terminate the permanent resident status of the alien as of the 90th day after the graduation of the alien from an institution of higher education.

(B) HEARING IN REMOVAL PROCEEDING- In any removal proceeding with respect to an alien whose permanent resident status is terminated under subparagraph (A), the burden of proof shall be on the alien to establish compliance with the condition of paragraph (1).

(3) DETERMINATION AFTER PETITION AND INTERVIEW-

(A) IN GENERAL- If a petition is filed in accordance with the provisions of paragraph (1), the Attorney General shall make a determination, within 90 days, as to whether the facts and information described in subsection (d)(1) and alleged in the petition are true with respect to the alien’s education.

(B) REMOVAL OF CONDITIONAL BASIS IF FAVORABLE DETERMINATION- If the Attorney General determines that such facts and information are true, the Attorney General shall so notify the alien and shall remove the conditional basis of the status of the alien effective as of the 90th day after the alien’s graduation from an institution of higher education.

(C) TERMINATION IF ADVERSE DETERMINATION- If the Attorney General determines that such facts and information are not true, the Attorney General shall so notify the alien

and, subject to subparagraph (D), shall terminate the permanent resident status of an alien as of the date of the determination.

(D) HEARING IN REMOVAL PROCEEDING- Any alien whose permanent resident status is terminated under subparagraph (C) may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Attorney General to establish, by a preponderance of the evidence, that the facts and information described in subsection (d)(1) and alleged in the petition are not true with respect to the alien’s education.

(d) DETAILS OF PETITION-

(1) CONTENTS OF PETITION- Each petition under subsection (c)(1)(A) shall contain the following facts and information:

(A) The alien graduated from an institution of higher education, as evidenced by an official report from the registrar--

(i) within six years, in the case of a four-year bachelor’s degree program; or

(ii) within four years, in the case of the degree program of a two-year institution.

(B) The alien maintained good moral character.

(C) The alien has not been convicted of any offense described in section 237(a)(2) or 237(a)(4).

(D) The alien has maintained continuous physical residence in the United States.

(2) PERIOD FOR FILING PETITION- The petition under subsection (c)(1)(A) must be filed during the 90-day period after the alien’s graduation from a institution of higher education.

(e) TREATMENT OF PERIOD FOR PURPOSES OF NATURALIZATION- For purposes of title III of the Immigration and Nationality Act, in the case of an alien who is in the United States as a lawful permanent resident on a conditional basis under this section, the alien shall be considered to have been admitted as an alien lawfully admitted for permanent residence and to be in the United States as an alien lawfully admitted to the United States for permanent residence.

(f) TREATMENT OF CERTAIN WAIVERS- In the case of an alien who has permanent residence status on a conditional basis under this section, if, in order to obtain such status, the alien obtained a waiver under subsection (h) or (i) of section 212 of the Immigration and Nationality Act of certain grounds of inadmissibility, such waiver terminates upon the termination of such permanent residence status under this section.

(g) INSTITUTION OF HIGHER EDUCATION DEFINED- In this section, the term ‘institution of higher education’ has the meaning given the term in section 101 of the Higher Education Act of 1965 (20 U.S.C.1001).

SEC. 5. GAO REPORT.

Six years after the date of enactment of this Act, the Comptroller General of the United States shall submit a report to the Committees on the Judiciary of the Senate and the House of Representatives setting forth--

(1) the number of aliens who were eligible for cancellation of removal and adjustment of status during the application period described in section 3(a)(1)(A);

(2) the number of aliens who applied for adjustment of status under section 3(a);

(3) the number of aliens who were granted adjustment of status under section 3(a); and

(4) the number of aliens with respect to whom the conditional basis of their status was removed under section 4.